Tuesday, July 12, 2016

Now, HR Defenders, Civil Society, Trade Unions, Community Groups faces the risk of being victim to Prevention of Crimes Act[POCA] - a law that allows for 'without trial' Detentions, Police Supervision/Restriction Orders, Extended Remand after arrest, etc... Politicians and political parties may be safe but not others...

Activists may be next, group says after Sanjeevan detained under POCA

Monday July 11, 2016
06:04 PM GMT+8

A
human rights group has expressed concern over the use of the Prevention
of Crime Act 1959 to arrest anti-crime activist Datuk R. Sri Sanjeevan
(pictured). — File picKUALA LUMPUR, July 11 — The use of
the Prevention of Crime Act 1959 (POCA) to arrest anti-crime activist
Datuk R. Sri Sanjeevan might kick off the use of the “draconian law”
against civil society, a human rights group warned today.

The Malaysians Against Death Penalty and Torture (MADPET) noted that
Sanjeevan could be seen as a human rights defender as the NGO he heads,
the Malaysian Crime Watch Task Force, could be said to be a civil
society organisation.

“MyWatch can be said to be a civil society organisations (CSO), and Sanjeevan may be seen as Human Rights Defender.

“As such, the arrest and detention is of concern, as this may be the
advent of the usage of POCA against other civil society organisations
and human rights defenders, MADPET coordinator Charles Hector said in a
statement today.

A magistrate’s court here granted police today a 21-day remand of
Sanjeevan under POCA that will expire on July 31, after he was first
arrested on June 22 for alleged criminal intimidation and extortion.

Hector said there may be a narrow interpretation of a clause in the Act
that states no one shall be arrested solely for their “political belief
or political activity”.

“But the worry is that this may be given a narrow interpretation to
just mean political parties and politicians — but will not include civil
society organisations (CSOs), non-governmental organisations (NGOs),
trade unions, community organisations, people movements and human rights
defenders,” Hector said.

He also said Sanjeevan’s arrest under POCA breached Article 11(1) of
the Universal Declaration of Human Rights (UDHR) that states that a
person is presumed to be innocent till proven guilty, pointing out that
the law allowed for detention without trial.

“This law allows for the avoidance of the right to be heard and/or the
right to a fair trial. A suspect can simply be subjected to Detention
Without Trial (DWT) and Police Supervision (or Restriction) Orders
without first being proved guilty in court.

“The principle of presumption of innocence until proven guilty is
ignored. It is also a violation of Article 11(1) Universal Declaration
of Human Rights (UDHR) that states that, ‘Everyone charged with a penal
offence has the right to be presumed innocent until proved guilty
according to law in a public trial at which he has had all the
guarantees necessary for his defence’,” Hector explained. - Malay Mail, 11/7/2016

-
See more at:
http://www.themalaymailonline.com/malaysia/article/activists-may-be-next-group-says-after-sanjeevan-detained-under-poca#sthash.tnOIZYuy.dpuf

Media Statement –
11/7/2016

WRONG TO USE DRACONIAN PREVENTION
OF CRIME ACT(POCA) IN SANJEEVAN’S CASE

-Repeal Prevention of Crime Act 1959
(POCA) -

MADPET(Malaysians Against Death Penalty and Torture) is
shocked that Malaysian Crime Watch Task Force(MyWatch) chairman Datuk R. Sri Sanjeevan was detained under the Prevention of Crime Act
1959 (POCA) for alleged criminal intimidation and extortion. It was reported
that he was detained under Section 3 (1) of POCA for another 60 days because he
was believed to have committed criminal intimidation and extortion (Star, 11/7/2016).

Prevention of Crime Act 1959 (POCA) is a draconian law that
has received far too little attention as the victims of this Act have generally
not been famous politicians or personalities, but possibly just ordinary
persons. This law allows for the avoidance of the right to be heard and/or the
right to a fair trial. A suspect can simply be subjected to Detention Without
Trial (DWT) and Police Supervision (or Restriction) Orders without first being
proved guilty in court. The principle of presumption of innocence until proven
guilty is ignored.

It is also a violation of Article 11(1) Universal Declaration
of Human Rights (UDHR) that states that, ‘Everyone charged with a penal offence
has the right to be presumed innocent until proved guilty according to law in a
public trial at which he has had all the guarantees necessary for his defence.’.

POCA – Maximum Remand
Only 21 Days (or later 38 days)

POCA also allows, if certain conditions are fulfilled, a
person to be remanded for a longer period. The need to produce before a
Magistrate within 24 hours is still there, but if POCA is going to be used,
then they can get a remand order for 21 days. In normal criminal procedure, the
maximum remand period on first application is 7 days for serious crimes, and
the total duration of remand is 14 days.

The Star report, that
stated that Sanjeevan was detained under Section 3 (1) of POCA for another 60
days is not right. Under POCA, section 4(1)(a) states that ‘on production of a
statement in writing signed by a police officer not below the rank of Inspector
stating that there are grounds for believing that the name of that person
should be entered on the Register, remand the person in police custody for a
period of twenty-one days;’ As such, longest permissible period of
remand should be only 21 days and certainly not 60 days.

Now, POCA also further provide in section 4(2) that ‘Any
person remanded under paragraph (1)(a) shall, unless sooner released, on or
before the expiry of the period for which he is remanded be taken before a
Magistrate, who shall-(a) on
production of- (i) a statement in writing signed by the Public Prosecutor
stating that in his opinion sufficient evidence exists to justify the holding
of an inquiry under section 9; and (ii) a statement in writing signed by a
police officer not below the rank of Assistant Superintendent stating that it
is intended to hold an inquiry into the case of that person under section 9,order the person to be remanded in custody
for a period of thirty-eight days;

This means that Sanjeevan needs to be brought back before the
Magistrate another time, before the expiry of the first 21 days, and then the
Magistrate can make another remand order for a period of 38 days. From the
perusal of POCA, MADPET believes that the Star report is most likely incorrect,
for the longest period that Sanjeevan could be remanded is 21 days.

POCA – ONLY FOR CERTAIN
CATEGORIES OF PERSONS

POCA can only be used for certain crimes committed by certain
categories of persons, as clearly specified in the First Schedule of this Act
being, amongst others - members of unlawful societies,; persons who belong to
or consort with any group, body, gang or association of two or more persons who
associate for purposes which include the commission of offences under the Penal
Code; traffickers in dangerous drugs,
including persons who live wholly or in part on the proceeds of drug
trafficking; traffickers in persons, including persons who live wholly or in
part on the proceeds of trafficking in persons; persons concerned in the
organisation and promotion of unlawful gaming; smugglers of migrants, including
persons who live wholly or in part on the proceeds of smuggling of migrants; Persons
who recruit, or agree to recruit, another person to be a member of an unlawful
society or a gang or to participate in the commission of an offence; and Persons
who engage in the commission or support of terrorist acts under the Penal Code.

It was reported in Star that ‘previously, Sanjeevan, 32, and
his driver, an Indian national, were detained under Section 506, Section 384
and 385 of the Penal Code’, and as such, MADPET wonders how the authorities
could even resort to using POCA in this particular case.

POCA is a draconian legislation that denies one the right to
fair trial, and allows for administrative Detention Without Trial and/or Police
Supervision/Restriction Orders which can be indefinite. The Act is draconian as
it does not allow Judicial Review of the reasons for the issuance of these Without
Trial Orders, which do deprive a person of liberty, freedoms and rights.

MADPET is also concerned of the one very broad category of
Registrable Category in the First Schedule of POCA, being ‘2. Persons who
belong to or consort with any group, body, gang or association of two or more
persons who associate for purposes which include the commission of offences
under the Penal Code.’. This can easily be abused and used against any persons,
including civil society, trade unions, human rights defenders, local
communities and any persons that are alleged to have committed crimes together
with others.

MyWatch can be said to be a civil society organisations(CSO),
and Sanjeevan may be seen asHuman
Rights Defender. As such, the arrest and detention is of concern, as this may
be the advent of the usage of POCA against other civil society organisations
and human rights defenders.

Now, the Act do state that, ‘No person shall be arrested and
detained under this section solely for his political belief or political
activity’ – but the worry is that this may be given a narrow interpretation to
just mean political parties and politicians – but will not include civil
society organisations(CSOs), non-governmental organisations(NGOs), trade unions,
community organisations, people movements and human rights defenders.

Therefore MADPET:-

Calls that Sanjeevan of
MyWatch not be further remanded and/or dealt with under the Prevention of Crime
Act 1959 (POCA), and that he be dealt with in accordance with the normal Criminal
Procedure Code, and accorded with all his rights in a criminal justice system including
the right to a fair trial.

Call for the repeal of
the Prevention of Crime Act 1959 (POCA), and the immediate and unconditional
release of all those currently detained under Detention Without Trial Orders,
and also those under Police Supervision and/or Restriction Orders. No one
should be subjected to such orders without being first accorded the right to a
fair trial.

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